Castle Doctrine Law Raises Questions about Self Defense

Mark Hinkston’s June 2013 article on the castle doctrine in Wisconsin is entitled “Home Safe Home.” These safe homes might now have signs outside warning of a deadly shooter within.

The article describes self defense in Wisconsin. Before the castle doctrine law, it was required to show deadly action was necessary to terminate an attack, to get a defense of privilege to the jury. See the article for a good explanation of this and the new law’s expansion of the self-defense privilege in the home and elsewhere, which justifies deadly force just on a showing of illegal and forcible entry. In fact, the new law says the court must presume the deadly force was justified on this showing.

The author notes others’ criticisms of the new law that say deadly force could easily be justified in situations where such force was not called for. As I wrote this in my home, there was a knock at my door. Before I could get up, the “intruder” opened it and deposited a newspaper inside. It was raining. He did not have permission to open the door. I was surprised, but did not mind. Under some district attorneys’ interpretations, he forcibly entered. This would justify blowing him away according to these interpretations of force.

Mr. Hinkston says self-defense law is not dramatically expanded. It has changed so significantly that we have already had one major case of a fairly unobtrusive trespasser being shot to death. The prosecutor decided not to file charges, apparently on the strength of the new privilege and its presumption that requires no showing of need to use deadly force. It may be that the use of the deadly force in shooting an intruder will often hinge on whether the intruder entered forcibly. One of the biggest problems with the new statute is that “forcibly entering” is not defined. The statute appears to be vague, since it is not defined, but the law is apparently unchallenged as it stands. There are other problems (not discussed in the article), dealing with who applies the presumption and when.

Have there been severe problems with applying the long-standing definition of self defense before this new law? If there have, I suspect there will be many more problems with the newly defined privilege. Armed homeowners will no longer have to justify reasonable force. It appears that there are already victims who clearly had no violent intentions and there was no reason to believe they did. The law seems to have been generated out of the clamor for more liberal rules on possession and use of weapons, not based on unfairness of the old self-defense privilege and its use in court. So I disagree that the new law does not change the privilege, and I agree with those who believe it creates danger and potential for abusing the privilege.

Gary Getzin, Wausau

Response: Mr. Getzin, for the most part, criticizes the law’s passage and content and not my description of the law and its attendant considerations. He appears to primarily challenge legislators for passing the new law in response to the “clamor for more liberal rules on possession and use of weapons.” He also criticizes the legislature for some drafting vagueness.

Mr. Getzin contends that I wrote the “self-defense law is not dramatically expanded.” I actually wrote that the castle doctrine law “has not dramatically expanded the right of homeowners to shoot and kill in self-defense” because they have always had that right, assuming they act reasonably. I in fact agree that the new law is a significant change in self-defense law in that it raises a presumption of reasonableness under certain enumerated circumstances.

I do not go as far as Mr. Getzin to subscribe to a belief that the new law spreads a danger that owners are more inclined to more regularly shoot at any intruder, including the accommodating paper carrier in Mr. Getzin’s example. I disagree with his suggestion that the law’s passage caused “one major case of a fairly unobtrusive trespasser being shot to death” (an apparent reference to the indisputably tragic Bo Morrison shooting). There is no evidence that the law’s passage caused Bo Morrison to be mortally shot. The law affected the decision to not pursue charges but it did not cause the tragedy.

To persuasively argue that the new law’s passage promotes and has caused hair-trigger reliance on, or abuse of, the self-defense privilege, one would have to prove that most homeowners know of the new law and that it will embolden them to consciously shoot entrants at will because more of the self-defense onus is now on the prosecution. Still, Mr. Getzin is entitled to believe that “danger” and “abuse” will follow the law’s passage, just as others are entitled to disagree.

Mark R. Hinkston,Knuteson, Hinkston & Quinn S.C., Racine

Because Life is Hard, Everyone Needs Help Now and Then – Even Lawyers

In the fall of my first year of law school, I attended a presentation about the “harder,” not so glamorous, sides of the legal profession. The speaker explained that lawyers and judges suffered increased levels of stress, depression, anxiety, alcoholism, drug abuse, and suicide when compared to the population at large. In several of those categories, the rates were two to three times that of the nonlawyer population in the United States.

As 1Ls, we were hopeful and optimistic we would be exempt from those ills and the corresponding statistics. I have since learned that none of us, including me, are exempt from the hardships of the profession. I believe that if caught early enough, the symptoms of these ills and the ills themselves could be substantially decreased or eliminated altogether.

First, we must analyze why the legal profession is plagued with such ills. Are the endless deadlines, pressures to bill, offices to run, successes and failures to contend with at every turn, and feelings of guilt for not being able to “do it all” to blame? Certainly, there are ways to decrease the number of hazards along the way.

Next, we need to remember that we are all susceptible to these ills. Both Abraham Lincoln and “Fighting” Bob LaFollette were excellent attorneys, leaders, and elected officials, but even they suffered from severe bouts of depression. Unfortunately and unfairly, our society places a negative stigma on mental illness; yet, it is nothing to be ashamed of and will likely affect most of us at some time. To address the issues related to mental health within our profession, we need to rid ourselves of that stigma and realize that mental illness is similar to the common cold – we don’t want to get it, but when it arrives we need the tools to deal with it.

One such tool is the Wisconsin Lawyers Assistance Program, or WisLAP, which is based on the premise of “Lawyers Helping Lawyers” and “Judges Helping Judges.” For a confidential consultation, call (800) 543-2625. Visit www.wisbar.org/wislap or email WisLAP Coordinator Linda Albert at org lalbert wisbar wisbar lalbert org for more information.

Finally, we need to support each other and not look the other way when we see a colleague in need. Because we are required to be strong in so many aspects of our lives, it is extremely difficult for most of us to reach out for help. We believe that such an act would show weakness. Mental health professionals will be quick to tell you that seeking help for depression and anxiety is essential, because untreated depression is the leading cause of suicide in our nation. Untreated mental illness can be a life and death matter.

Remember, there is no shame in seeking help, and you are not alone.

Joshua J. Kindkeppel, President, Dane County Bar Association

Primer for Civil Lawyers on the Criminal Process Still Timely, Relevant Today

The February 2000 Wisconsin Lawyer featured a terrific article entitled “When the FBI Comes to the Door,” by attorneys Steve Biskupic and the late Dave Cannon. The article is a primer on the criminal process for civil lawyers, designed to enable them to avoid damaging their clients who might find themselves involved in criminal investigations.

As a former federal prosecutor and defense attorney and current bankruptcy judge, I sometimes am invited to speak to bankruptcy lawyers concerning the intersection of bankruptcy and criminal law. I have used the Biskupic/Cannon article as part of the written materials on at least two occasions – once for the 2,000-person annual meeting of the National Conference of Bankruptcy Judges in New Orleans, and the second time for an upcoming American Bankruptcy Institute conference in Florida.

While the article is 13 years old, the information and advice in it remain relevant and timely today. Attorneys have found the piece very helpful, and bankruptcy lawyers and judges from all over the country get to see the work of our great Wisconsin lawyers. Thanks to Steve and Dave for their great work, and to the Wisconsin Lawyer for showcasing it!